Matthew T. Mangino: The presumption of innocence

Matthew T. Mangino More Content Now

Friday

Jun 7, 2019 at 8:50 AM

Has the presumption of innocence given way to the presumption of “guilt?”

The concept of presumed innocence is not specifically mentioned anywhere in the U.S Constitution - although a jury, or judge, must presume an accused person innocent until proven guilty beyond a reasonable doubt.

Although the presumption of innocence is an issue for trial, the presumption of “guilt” pre-trial is a growing concern. In a nation that incarcerates more people for longer periods of time than nearly every other nation in the world, the concern is valid.

In this media-driven world with an endless news cycle, men and women “accused” of a crime are vilified within hours of their arrest or even before an arrest - without regard to the fact that the reporting is based on mere allegations.

No one is entitled to the presumption of innocence before trial begins. Scrupulous prosecutors are careful to affix “alleged” when talking about a suspect. Defense attorneys are eager to point out that their clients are innocent until proven guilty. NBC legal analyst Dan Abrams once wrote in The Wall Street Journal, “Demanding that all of us presume every defendant innocent outside of a courtroom is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion.”

Beyond the media, there are a growing number of situations that appear to encroach on fundamental liberty rights before an accused is adjudicated guilty. DNA collected from individuals after arrest, rather than after conviction, is an example of over reach. Opponents say it is unconstitutional and supporters say the measure would prevent violent crime.

The U.S. Supreme Court ruled in 2013 that police can take DNA samples from people who are arrested, but not yet convicted of a crime, and determine if the DNA matches any samples from unsolved crimes in a national database. If the accused is later found not guilty, or exonerated in some manner, his or her DNA is not removed from the database.

I wrote last week about bail pending trial. Those who fight for bail reform argue that imprisoning individuals while awaiting trial, which could easily be months or years in the future, is an egregious civil rights violation and establishes a precedent that could be used to punish or coerce someone accused of a crime.

Those who support a monetary bond system seem satisfied that merely a strong suspicion of guilt is enough to set in motion the punitive aspects of the criminal justice system. How about the movement in many states to extend or repeal the statute of limitations for rape cases? Some argue that rape is one of the vilest things a human being can do to another human being and there should be no limit for prosecuting an alleged rapist. An accused could face criminal prosecution based on allegations of rape that occurred 50, 60 even 70 years ago. The statute of limitation has been around since antiquity. As time passes, memory fades, witnesses die and evidence disappears. The statute of limitations protects individuals from facing charges under those hopeless circumstances.

Finally, a fundamental principle of criminal law has long been that the government must prove a defendant’s criminal intent to commit a crime. This legal protection is now being eroded as Congress continues to churn out legislation in dramatic numbers. In the last quarter century, there has been an onslaught of federal laws enacted that weaken the government’s responsibility to prove criminal intent. The increasing number of crimes and the absence of having to prove the willful nature of conduct is alarming.

While the presumption of innocence is for trial, judges and lawmakers alike should not make it increasingly more difficult for an innocent person to protect his or her liberty interests and the right to mount a vigorous defense.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.